Toxic Justice

Lawyer Fred Baron says he's one of the good guys, fighting a war against evil asbestos manufacturers. But some former employees claim his firm is a factory that mass-produces lawsuits by implanting memories and inventing testimony.

When the first asbestos cases were filed in the 1970s, the victims were horribly ill with cancer, asbestosis, or lung ailments. The original targets of most of those suits were the asbestos manufacturers who had held the largest share of the market. Now, 25 years after those original cases, some of the big manufacturers have been bankrupted by the legal claims, and many of the most seriously harmed workers are in their graves.

In 1982, Johns-Manville, the biggest single manufacturer of asbestos products and, at the time, number 181 on the Fortune 500, became the first to seek bankruptcy protection. Since then, more than 15 other manufacturers--many of whom were the biggest producers of asbestos, and thus among the first generation of asbestos defendants--have gone the way of Manville. When Manville sought bankruptcy protection, it estimated that a total of 68,500 claims would be filed; in 1986, at the time of its reorganization, it estimated there might be as many as 100,000; today, more than 381,000 claims have been submitted, and the trust estimates another 350,000 are on the way. The Manville trust, which today holds 80 percent of the company's stock and exists to pay the claims of victims, has paid more than $1.8 billion since 1986. (The trust's average settlement is $5,000.)

Partly because lawyers like Baron helped get asbestos products taken off the market, the pool of victims with the most serious asbestos-related sicknesses is diminishing. At the same time, however, the claims and lawsuits are increasing rapidly. According to David Austern, general counsel for the Manville Trust, this has resulted from a gradual expansion of just what constitutes asbestos disease. "Part of the problem was sort of an amazing elasticity--which is about as calm a word as I can think of--on the part of claimants' lawyers to find doctors who will say that somebody suffers from minimal asbestos disease," he says.

"Looking at projections...over the past 10 years, the cancer claim numbers have not been our problem," he says. "They have remained constant at about what the experts said they would be...Disabling asbestosis claims have not terribly exceeded the predictions of the experts. Our problem is in non-disabling asbestosis claims, where a claimant is asymptomatic--that is to say, they may or may not be sick."

In many of these cases, Austern says, there is not scientifically measurable illness. "And there you have to rely on chest X-rays, and reading any soft-tissue injury is an art form as well as a science."

What is left these days to feed Baron & Budd's mill are thousands of workers who often weren't in trades that worked directly with loose, or friable, asbestos. The ranks of insulators and pipe fitters are giving way to house-builders and roofers, supervisors, even office workers and supply clerks.

Thanks to the bankrupting of the biggest asbestos companies, the targets of their lawsuits are a host of smaller manufacturers--among them brake manufacturers, turbine manufacturers, paint manufacturers, even the makers of the first generation of respiratory equipment intended to protect workers from asbestos.

Many of the remaining asbestos manufacturers complain that they couldn't possibly have sold enough product to expose even a fraction of the men who claim to remember seeing their goods.

"My client is a very small player," explains one defense lawyer, who asked that his name not be used because, as he puts it, "when you irritate [Baron & Budd], they have a tendency to retaliate."

From '54 through '70, this company's total sales of asbestos products were $5 million, he says.

"I'd be surprised if [my client] actually sold enough product to expose half the people who claimed to have been exposed. We know, for example, of locations where not only was our product not there, but [it] would have no function there. Yet in case after case, Baron & Budd sues us and gets product ID and comes up with at least three or four co-workers [who identify the products]."

The problems arise when the workers Baron & Budd represents--nearly all in their 50s, 60s, and 70s--are asked to identify products they worked with 20 to 30 years ago, as the law says they must in order to collect. Memories fade, and it is up to Baron & Budd to help revive them, a process that Baron himself admits can involve implanting memories.

Specifically selected memories, say some employees who helped revive them.

Spreading fear
"I saw a dozen men choke to death--slowly die," says Roger Freeman, 67, a Baron & Budd client from Tuscumbia, Alabama. "They'd spend years laying in bed, drying up like a bean."

Like Freeman, many Baron & Budd clients have known and worked with men who died of asbestos disease.

"One of them lived here close to me, that died from asbestosis," says Julian Avery Roberts, 61, of Hartselle, Alabama. "Another guy's son died when he was 22 years old. This guy was an insulator--he'd come in, and he'd have it on his clothes, and his son was just a small child. He'd climb up in his lap and all. Got it through that."

Naturally enough, these men fear what asbestos can do. According to the U.S. Centers for Disease Control and Prevention, "[b]reathing very high levels of asbestos may result in a slow buildup of scar tissue in the lungs and in the membrane that surrounds the lungs. This disease is called asbestosis, and is usually found in asbestos workers and not in the general public."

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